Judge Says That Sherlock Holmes Is In The Public Domain

from the but-this-isn't-over-yet dept

Almost exactly four years ago, we had a discussion on the curious case of Sherlock Holmes and the public domain. As we explained, nearly all of the books and stories by Sir Arthur Conan Doyle were published prior to 1923, putting them clearly in the public domain in the US. However, there was one remaining book of ten stories that was published after 1923, and still covered by copyright. Because of that, the Conan Doyle Estate has argued that Sherlock Holmes, Dr. Watson and a variety of other facets of the stories remained covered by copyright because those remaining works were still covered. This goes against a lot of case law, but rather than challenge this, plenty of publishers, filmmakers, TV producers and the like have just lined up to pay the Estate to avoid having to go to court.

Finally, back in February, a couple of authors/scholars of Holmes filed for declaratory judgment to have a court declare that Holmes, Watson and a variety of other key "elements" were in the public domain. The Conan Doyle Estate flipped out, arguing that the character isn't done until all works have been published, and thus the clock on the public domain doesn't start ticking until the last work is published. It further argued, bizarrely, that it would be absolutely horrific if, somehow, Holmes made it into the public domain, because it would create "multiple personalities" as the public might (gasp!) actually do stuff with Holmes. As we pointed out at the time, that's kind of the point of the public domain.

Conan Doyle argues that the effect of such a holding will be to dismantle Sir Arthur Conan Doyle's characters into a public domain version and a copyrighted version.... This is, however, precisely what prior courts have done. Silverman and Pannonia Farms instruct that characters and story elements first articulated in public domain works are free for public use, while the further delineation of the characters and story elements in protected works retain their protected status. Conan Doyle argues that the precedent exemplifed in Silverman should pertain only to two-dimensional, "flat" characters and not to complex, three-dimensional characters such as Sherlock Holmes and Dr. Watson.... Conan Doyle fails to offer a bright line rule or workable legal standard for determining when characters are sufficiently developed to warrant copyright protection through an entire series, nor does it provide any case law that supports its position. Conan Doyle's proposed distinction runs counter to prevailing case law.... The effect of adopting Conan Doyle's position would be to extend impermissibly the copyright of certain character elements of Holmes and Watson beyond their statutory period, contrary to the goals of the Copyright Act.

There was a second issue at play here -- concerning certain story elements that were first published in those post-1923 stories, which the authors hoped would be declared in the public domain as well, basically by arguing that the "elements" were not things that could be covered by copyright in the first place. As is made pretty clear by the judge's ruling, Leslie Klinger, who brought the suit, did a pretty bad job of making this particular part of the case, ceding arguments that probably shouldn't have been ceded, and failing to fully develop the argument. The judge therefore rejected that part, but it's possible those elements could be subject to further review assuming the rest of the case moves forward.

There was one other part of the ruling that was somewhat important. In our post about the the Conan Doyle Estate's response, we noted that the Estate tried to argue that every work after the initial Sherlock Holmes story should not be considered a "derivative work," so various case law concerning derivative works should not apply. As we noted, there was no legal basis for this, and the only real reason the Estate seemed to come up with was that it was somehow insulting to suggest later works were "derivative." Thankfully, the judge rejects that argument as well.

Of course, the Conan Doyle Estate is not done fighting. Not only has its lawyer said that the Estate is "exploring an appeal," but also hinted at using trademark law to stop other attempts at using the characters. Stay tuned on that front...

Still, this should be seen as a victory for the public domain. Wednesday is "Public Domain Day," as January 1st is the date around the globe that new works enter the public domain. As we've noted repeatedly in the past, the US hasn't had an actual public domain day in many, many years, thanks to constant copyright term extension. So it's nice that Judge Ruben Castillo at least gave a tiny slice of the public domain back to the public.

Perpetual copyright duration

'arguing that the character isn't done until all works have been published, and thus the clock on the public domain doesn't start ticking until the last work is published.

... had the judge bought their argument on that part, that would have left a barn-sized loophole in copyright duration, where as long as the 'estate' that got ahold of the copyright continued to pump out books involving the characters, say by hiring some other writer to 'continue the story', they'd be able to keep the older works under essentially permanent copyright, where they'd never be able to enter the public domain, because the 'story, and the characters in it, weren't finished'.

Glad the judge shot that down, and hopefully any appeals will likewise rule on the side of sanity and the public.

Re: Re: Perpetual copyright duration

Well, that would only cover the new book and not the old stories in the original language. If the book contained characters and events, the new book would not change the copyright on those specific story elements.

Copyright is ridiculously complicated. This ruling does little to clarify the shape of it since the Conan Doyle Estate was arguing from such an incoherent legal theory (or even lack of such!).

Re: Re: Perpetual copyright duration

Wait...translating a public domain book merits a copyright? How does that work? Wouldn't that be merely a factual translation e.g. translating 'Je suis' to 'I am', with little to no creativity involved? I thought works of mere fact weren't eligible for copyright due to the rejection of sweat-of-the-brow.

Re: Re: Re: Perpetual copyright duration

Translations often involve creative effort, eg rewording idioms so that they can be understood by the new audience. If I tell OOTB to get bent, a literal translation is likely not going to convey what I really meant. And sometimes supplementary notes are needed. Eg in Japanese, there are separate first person singular pronouns depending on gender. In the absence of other cues, a translator might need to add a note or totally rewrite a passage to indicate to an English speaker what gender a character in a book is, when it would be immediately understood by a native reader.

A very simple translation might not qualify, but it's not hard to go beyond simple projects. Look at how many versions of the Bible there are.

Re: translations

Excellent point. As a linguist, I can tell you that literal translations don't serve the reader the translated language. As an example, Imagine if you translated the floating island "Laputa" from Jonathan Swift's Gulliver's Travels into Spanish!

No wonder our justice system is failing. We're arguing over whether something some dead guy wrote 100 years ago is in the public domain or not. The courts seem to forget that copyright is "for the author" and not for the author's great grandkids who are too lazy to get off their asses and do something on their own.

Re: Re: Re: Re:

by securing for limited Times to Authors

Did you miss this part? Copyright is only intended for the author, not their grandchildren. That was my original point. I understand the purpose you are getting at, but I'm trying to convey that our founders did not intend to lock up works for multiple generations.

Re: Re: Re: Re: Re:

Copyright is only intended for the author, not their grandchildren.

I do see your point. (Apologies for not recognizing that you were the same AC that made the original post.)

Still, the point stands, and it does actually provide a rationale for providing copyright past the death of the author. The monopoly privileges are granted not just as an economic incentive to create, but also as an economic incentive to publish.

So, if copyright did not survive the original author, then heirs would lack that incentive to publish posthumous works. Also, publishers would be less likely to deal with authors who are nearing the end of their lives, since they know that any monopoly they could be assigned would only be economically enforceable for a few years.

But I wholeheartedly agree that copyright lasts way too long. Frankly, even the lifetime of the author may be too long. Inventors aren't granted such a lengthy term when they hold a patent, and I don't see why authors should be treated any differently.

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Sherlock

I believe that the idea of Sherlock Holmes should be a prime example of what CAN happen when you allow people to expand upon an idea. With successes like the movies feat. RDJ and Jude Law, Elementary (US/CBS), and Sherlock (UK/BBC fucking love this show) people should recognize the good that comes from opening up. A new generation of kids, and adults are now falling in love with the characters and my son even asked me to get him the original stories.

Re: Where's the incentive?

Re: Where's the incentive?

Even if ACD could rise from the grave and write more, I'm pretty sure he'd refuse, just to make sure that his petty, greedy descendants stopped shitting on his legacy for money. At least, I'd hope he'd be so inclined. I would.

They may have to get jobs now.

Maybe they will actually have to get jobs now rather than feeding off of someone else's work or maybe they could actually start earning the money for once by writing their own versions of Sherlock Holmes. Anything they write would be copyrighted but only the new stories themselves and not the characters.

Dead people need no incentives

Dead people need no incentives to write books so copyrights beyond death is a disincentive for more works. It is really just a way for non creative to leach on to someone else's work and keep others from expanding it.

Of course, the Conan Doyle Estate is not done fighting. Not only has its lawyer said that the Estate is "exploring an appeal," but also hinted at using trademark law to stop other attempts at using the characters. Stay tuned on that front...